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May 18, 2021
In recent years internet memes have become a global phenomenon, dominating every available corner of the digital web. Despite this, little consideration has been given to the intellectual property attached to them, leading many to believe it's a non-issue.
However, when it comes to meme culture there is often more than meets the eye, particularly when it comes to intellectual property law. So much so, that they can have the potential to trigger a complex copyright conundrum. In this article, we tackle memes, their commercial use, and the copyright that comes with leveraging a viral meme.
A “ meme ” is generally an image, GIF or video that has been altered with text, or the overlay of other images for the purpose of sharing humour on the internet, typically on social media. Memes are used prolifically across the internet, both within private internet conversations and more widely, on publicly used online platforms such as Youtube, LinkedIn and Facebook, so you are likely to have come across one or two.
Like most artistic creations, copyright (a type of intellectual property right) can arise automatically in the newly-created meme, provided the meme is the author’s own intellectual creation. Copyright allows owners to prevent the work from being infringed, (i.e. used and exploited) by other individuals or companies. The author of creator of the artistic work is also generally the owner of this copyright and can bring claims against anyone who uses their work without permission.
However, memeaholics should bear in mind that the original image or video used as the basis for the meme is very likely to be protected by its own pre-existing copyright. The copyright in the original materials may be owned by the person who created them, or that person may have sold their intellectual property rights in the materials to another person or company. If you use the original copyrighted material without obtaining the owner’s permission, you will be infringing that person’s copyright, and may be liable to pay damages for that infringement.
Many images and videos on the internet are released by the owner for general use, either through being put into the public domain (essentially waiving the copyright, or through being released under an ‘open’ licence such as 'Creative Commons’, which allows anyone to use the materials provided they comply with the open licence conditions, which are generally very light and permissive.
However, most images, videos, and other content found on the internet are only authorised for use by their owners for a licence fee, under specific terms and conditions. There are hundreds of websites which offer huge libraries of ‘stock’ materials for use by anyone prepared to pay a small fee and abide by the terms of the applicable licence. Other creators exercise greater control over the use of their materials, charging higher fees and only licensing their materials under more strict conditions.
Generally, if you’re just sharing a meme for fun on social media, this won’t be much of an issue. But if you start using your meme for commercial use – for example through your company’s marketing channels - it might start to attract the attention of the copyright owner of the original image or video. If you haven’t made sure you have the right to use the original materials, you may find yourself the unhappy recipient of a cease and desist letter or a claim for damages.
Why are we pontificating about the copyright in memes? During some internal back-slapping about how splendid we all are, a member of the team posted this image, an on-point variation of a well-known meme:
Despite the marketing team's eagerness to post the image on social media, our IP law team were forced to do a little digging.
We established that the original image – despite becoming one of the most viral meme themes of recent years – is not in the public domain, or released under a Creative Commons licence. It’s available for licence on a stock photography site for a reasonable fee, which we duly paid, allowing us to show our own particular variation here today in all its glory, and to splash it over our social media channels at will (subject of course to the terms and conditions of the licence agreement).
Now, the majority of people circulating versions of this and many other memes online won’t be doing so in a commercial context – this doesn’t mean that they’re not technically infringing the copyright in many of the content used in the memes. The owners of the copyright in such, whilst having the right to pursue claims against some or all of the unauthorised users, may choose not to pursue infringement action in the vast majority of cases, as taking a whack-a-mole approach to individuals who aren’t using the content in a commercial context would be a fruitless and exhausting exercise.
However, if you’re a business thinking of using a meme (or any other content you don’t own) on your next LinkedIn post or marketing campaign, it’s important to make sure that you’ve checked the ownership and copyright situation in relation to all the content you use. As a business, with a reputation to protect, and funds or insurance to pay damages for infringement claims, you’re much more of a target than Joe Public sharing an image with their friends on Facebook, so it’s crucial you don’t infringe other people’s copyright.
Even when you do license an image for use, you need to read the licence terms carefully – do you have the right to use the popular meme commercially? Can you make changes to it? Do you have to accompany the original image with any specific text (such as a copyright notice)?
It shouldn’t take long to check all this, and the fees for stock images are generally quite low – much lower than having to deal with a nasty email landing in your inbox demanding you cease and desist your marketing campaign and pay damages for copyright infringement. If you would like to discuss or learn more about any of the themes discussed in this article, please email us.
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